Introduction
Australian regulators have a range of roles and powers. Some are independent government bodies, whereas others perform functions in addition to their regulatory roles, such as providing policy advice to government departments and formulating regulation.
It is not uncommon for practitioners to have to work with regulators in the course of advising clients. Outlined in this Guidance Note are some practice tips for dealing with regulators in general as well as dealing with selected regulators – the Australian Prudential Regulation Authority (APRA), the Australian Securities & Investments Commission (ASIC) and the Office of the Australian Information Commissioner (OAIC).
Dealing with regulators in general
Compliance culture
ASIC’s …show more content…
Practitioners should also be aware of timeframe requirements relating to breach reporting. Generally, in relation to breaches of a “non-financial” prudential requirement, APRA needs to be notified within 10 business days. However, in relation to breaches that relate to the client’s sound financial position or financial obligations, the requirement is immediate notification. Failure to notify APRA of a breach of a prudential requirement is a strict liability offence and attracts penalties of $360,000. A strict liability offence in essence is an offence that does not require intention or any fault elements to be …show more content…
There are a number of RGs that relate specifically to dealing with ASIC. Some may be of particular value to practitioners, and these include:
• RG 51 Applications for relief – As mentioned, ASIC has the power to grant relief from provisions of the legislation that ASIC administers. This RG is relevant to practitioners who are assisting their clients to apply for ASIC relief from the Corporations Act 2001 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth), and the National Consumer Credit Protection Act 2009 (Cth). It explains ASIC’s discretionary powers and sets out the types of relief available, the types of relief applications that can be made, how to lodge these applications, and ASIC’s general approach to relief applications.
• RG 52 Enforcement action submissions – In the limited circumstances, ASIC will invite or agree to consider submissions on what enforcement action should be taken in response to findings made in an investigation. Generally, submissions will be considered on questions of policy, and, occasionally, on questions of law, rather than on factual matters. Practitioners need to be aware that, if a client is invited to make a submission on enforcement action, he or she is not obliged to do so, and no adverse inference will be drawn from a decision not to make a submission on enforcement. This RG is useful to practitioner because it explains ASIC’s policy on the use of enforcement
Australian regulators have a range of roles and powers. Some are independent government bodies, whereas others perform functions in addition to their regulatory roles, such as providing policy advice to government departments and formulating regulation.
It is not uncommon for practitioners to have to work with regulators in the course of advising clients. Outlined in this Guidance Note are some practice tips for dealing with regulators in general as well as dealing with selected regulators – the Australian Prudential Regulation Authority (APRA), the Australian Securities & Investments Commission (ASIC) and the Office of the Australian Information Commissioner (OAIC).
Dealing with regulators in general
Compliance culture
ASIC’s …show more content…
Practitioners should also be aware of timeframe requirements relating to breach reporting. Generally, in relation to breaches of a “non-financial” prudential requirement, APRA needs to be notified within 10 business days. However, in relation to breaches that relate to the client’s sound financial position or financial obligations, the requirement is immediate notification. Failure to notify APRA of a breach of a prudential requirement is a strict liability offence and attracts penalties of $360,000. A strict liability offence in essence is an offence that does not require intention or any fault elements to be …show more content…
There are a number of RGs that relate specifically to dealing with ASIC. Some may be of particular value to practitioners, and these include:
• RG 51 Applications for relief – As mentioned, ASIC has the power to grant relief from provisions of the legislation that ASIC administers. This RG is relevant to practitioners who are assisting their clients to apply for ASIC relief from the Corporations Act 2001 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth), and the National Consumer Credit Protection Act 2009 (Cth). It explains ASIC’s discretionary powers and sets out the types of relief available, the types of relief applications that can be made, how to lodge these applications, and ASIC’s general approach to relief applications.
• RG 52 Enforcement action submissions – In the limited circumstances, ASIC will invite or agree to consider submissions on what enforcement action should be taken in response to findings made in an investigation. Generally, submissions will be considered on questions of policy, and, occasionally, on questions of law, rather than on factual matters. Practitioners need to be aware that, if a client is invited to make a submission on enforcement action, he or she is not obliged to do so, and no adverse inference will be drawn from a decision not to make a submission on enforcement. This RG is useful to practitioner because it explains ASIC’s policy on the use of enforcement